Criteria Dictate Court Cases, not Personal Views, Justice Says

Matthew Hersh

Despite the common perception that liberal and conservative judges alike have a tendency to legislate their views from the bench, there are actually strict criteria that dictate whether a case reaches the U.S. Supreme Court, and those criteria virtually preclude the use of personal opinions, said U.S. Supreme Court Justice Stephen Breyer Sunday at McCosh Hall on the University campus.

Mr. Breyer appeared alongside Princeton University Professor Robert George, the school's director of the James Madison Program in American Ideals and Institutions in a conversation on "Active Liberty" and the role civic involvement plays in Constitutional interpretation, even at the Supreme Court level.

Six tools are available when judging and interpreting text, he said: language, history, tradition, precedent, purpose or value, and consequence.

Not surprisingly, Mr. Breyer, nominated in 1994 by President Clinton and widely considered to be on the more liberal side of the court, said the last two tools, purpose and consequence, are often contested by his more conservative brethren on the court.

But it is in regard to those two particular tools, he said, that an active citizenry can affect a court's decision: "We don't need activist judges, but we do need activist citizens."

Some justices, Mr. Breyer said, specifically citing Justice Antonin Scalia "and others," emphasize only the first four tools, taking a hard-line, strict Constitutionalist approach. They won't discount the final two points, but, by and large, they will proceed without them. They will think, Mr. Breyer said, that if the court factors purpose and consequence too heavily in a court matter, "we stop being objective and become too subjective and the judge reads his own opinion into the law.

"That's one view," Mr. Breyer said.

The other view, to which he said he subscribed, is that that purposes and consequences are "very, very important," particularly those before the Supreme Court because the high court only takes cases where lower courts have reached different conclusions, with a vast number of opinions prevailing on either side.

"The text, history, tradition, and precedent won't give you the answer. And we therefore look to these other two," he said.

Ultimately, he added, there is a balance between being subjective and "wooden," that is, looking at phrases in the statute or in the Constitution "as if they set up a matrix" where "you can deduce the answer from some kind of logical determination based on the language and history alone.

"Nobody wants that," Mr. Breyer said. "Nobody wants to be wooden."

Mr. Breyer's recently published book Active Liberty: Interpreting Our Democratic Constitution served as the impetus for his talk. He urged students of Constitutional law to "look at the document as a whole" and not to pick apart specific passages cited for case law in deciding for arguable issues such as campaign finance and affirmative action. He also urged them to participate where civically applicable, particularly when it comes to voting: "The Constitution won't work if people don't participate."

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